Saturday, March 27, 2004

[David Bernstein,
3/27/2004 08:04:27 AM]Speaking of "Offensive" Cartoons in University Newspapers: The controversy Eugene blogged about yesterday reminded me of one of the more outrageous such incidents, back in the late 1980s. UCLA suspended an editor of the student newspaper for running an editorial cartoon ridiculing affirmative action preferences. In the cartoon, a student asks a rooster on campus how it got into UCLA. The rooster responds, “affirmative action.” After the editor was sanctioned by UCLA, student editor James Taranto (now of OpinionJournal.com) reproduced the cartoon in the California State University, Northridge student newspaper and criticized UCLA officials for suspending the paper’s editor for engaging in constitutionally protected expression. Northridge officials then suspended Taranto from his editorial position for two weeks for publishing controversial material “without permission.” However, when Taranto threatened a lawsuit, the school removed the suspension from his transcript.

UPDATE: Courtesy of Mr. Taranto, here's a reproduction of the original cartoon: He writes, correcting my version of the story slightly:

Ha, thanks for the trip down memory lane. Actually, the UCLA editor used the threat of a lawsuit to persuade the Communications Board (a student-government committee that oversaw the Bruin) to back down, though they claimed it was because they were satisfied with his apology, which was indeed quite groveling. For me, it took an actual lawsuit, which the defendants finally agreed to settle three weeks before the trial date.

Friday, March 26, 2004

[Eugene Volokh,
3/26/2004 08:36:14 PM]More on the university student newspaper investigation: Apparently the complaint brought against the newspaper and its faculty advisor (see the post several posts down, the one with the cartoon) cited as authority the American Indian Religious Freedom Act of 1996 (I think they might mean 1978), the Indian Civil Rights Act of 1968 (presumably mostly referring to this section), and the Southwest Missouri State University Nondiscrimination Policy (apparently here). None of these, it seems to me, comes even close to prohibiting cartoons such as the one involved in this incident -- though of course even if they did, they would be unconstitutional.

[Jacob Levy,
3/26/2004 04:33:15 PM]Headscarves contined:Peter Northup offers a careful reading of, and response to this defense of the French ban on "ostentatious" religious symbols in schools, written by Patrick Weil, a member of the commission that recommended the ban. Weil argues that the ban is needed to prevent (mainly) students bullying and compelling other students into wearing headscarves. Peter replies that there might have been a case for the ban if the problem was girls being coerced by parents otherwise outside the reach of the school system, but that if the problem is inter-student violence then it should be the violent students, not their victims, who get penalized or restricted.

Weil bemoans the fact that the ban was the only one of twenty-five commission recommendations adopted. He seems genuinely surprised, much after the fashion of people of goodwill who sit on government blue-ribbon commissions everywhere. Chirac convened them more or less explicitly for the purpose of getting a recommendation to ban headscarves. He got it. The mix of other recommendations (some of them commendably multiculturalist, such as an expansion of official holidays to include Jewish and Muslim as well as Christian ones)were no doubt important to the commissioners who understood themselves to be doing something other than rationalizing a ban; but they weren't of any importance to the French government. What Weil thought he and his fellow commissioners were doing bears relatively little relationship to what Chirac actually is doing. When I first blogged about the proposed law in December, I noted that Chirac had recently called the wearing of headscarves an "assault" against the republic.

The following case seems straightforwardly analogous to me. The governor of a southern state circa 1960 has accepted the integration of the public schools, but refers to interracial dating by students as an assault against the state's values. A commission is convened, and finds that students involved in interracial dating are routinely threatened or beaten by other students. In sadness more than in anger, and in order to protect the victims, it recommends a ban on interracial dating-- or at least on ostentatious displays of same, like holding hands in hallways-- along with a number of other reforms to promote improved race relations. The governor does the obviously-expected thing, adoptes the recommendation for the ban and ignores the rest.

The difference, of course, is that in France the government is coercing the targeted students in the opposite direction from what the violent students want, whereas in the hypothetical the government is coercing the targeted students in the same direction. But in both cases, the wrong students are getting coerced, and they're getting coerced under cover of their own protection by a government that openly wanted rid of the targeted behavior for reasons unrelated to the violence.

I fail to see the analogy between banning a behavior that is being repressed by violence and banning a behavior that is being enforced by violence.

Russell Arben Fox agrees with Mark about the analogy but agrees with me (I think) about the disconnect between the story about violence and the (unrelated and unsupportable) real reasons why the major officials of state support the ban.

Southwest Missouri State University (SMSU), a public institution bound by the First Amendment, is investigating the faculty advisor and student editor of its campus newspaper, The Standard, for publishing an editorial cartoon that a Native American group found "offensive." SMSU has refused to rule out a formal hearing on the matter, has requested that Standard faculty advisor Professor Wanda Brandon and editor-in-chief Mandy Phillips attend "mediation" to discuss the issue, and, according to Philips, has contacted The Standard to "advise" it that even reporting on the administration's intervention in this case could violate university policy.

"SMSU's attack on free speech, freedom of the press, and due process must end immediately," said Greg Lukianoff, director of legal and public advocacy for FIRE. He added, "If publishing an innocuous satirical cartoon is sufficient to set off secret investigations and proceedings, then truly no speech is safe on America's college campuses."

The cartoon in question, printed in the November 21, 2003, issue of The Standard, was entitled "The 2nd Thanksgiving." It depicts two Native Americans meeting a Pilgrim woman with a gift of canned corn. The Pilgrim responds, "Gladys, the Indians are here and it looks like they brought corn . . . Again . . ." The cartoonist, who is not being investigated (and who is, himself, of Native American descent), later explained, "The point of the cartoon has nothing to do with Native Americans or Pilgrims . . . I was trying to reflect a common Thanksgiving tradition of a host griping about what their guest has brought to the dinner."

On the evening of December 2, 2003, three members of the student group American Indian Leaders of Today and Tomorrow came to The Standard's office. They complained about the cartoon to editor Mandy Phillips, who became nervous due to the level of anger the men displayed. The following morning, Phillips and Brandon filed a report with the Springfield Police. According to that report, the "very angry" men "threatened to have her [Phillips] fired as well as having the entire Navajo Nation rally against her and The Standard."

On December 5, Jana Estergard of SMSU's Office of Equal Opportunity (OEO) contacted Professor Brandon to request a meeting about a complaint regarding The Standard. At the time, Estergard would not say who was a target of the investigation, nor would she provide further details. Brandon pointed out that The Standard's bylaws expressly prohibit her from controlling the content of the paper, but neither this fact nor the First Amendment's guarantee of freedom of the press persuaded the OEO to drop its investigation. It was not until mid-January that Estergard gave Brandon even a brief summary of the charges against her. The complaint absurdly alleged that The Standard had violated a religious freedom law, a civil rights act, and university policy -- all simply by publishing a cartoon.

Estergard ominously drew Brandon's attention to an OEO regulation that prohibits the target of an investigation from even divulging the fact that he or she is being investigated. This regulation not only prevents the subject of an investigation from getting advice on how to proceed, but also ensures that questionable OEO activities will not be exposed to public scrutiny. Standard editor Mandy Phillips states that the OEO attempted to use this policy to prevent the newspaper from printing an article about the investigation.

Professor Brandon refused an OEO proposal of "mediation" to settle the issue. According to Brandon, "I decided this was not right and that it was in fact illegal for the OEO to attempt to put me and the editor through a process that could result in punishment." When asked about the free speech controversy, SMSU President Keiser told a local newspaper that he thought that the cartoon was "dumb" and said, "This is not a free speech issue. It's an education issue." . . .

FIRE requested that the OEO's investigation cease immediately and that SMSU reassure its students and faculty that it respects the Constitution and freedom of the press on campus. A day later, SMSU's general counsel replied, insisting that "Dr. Brandon has not been subjected to an investigation." He claimed, "the issue is education, not free speech." . . .

This is obviously just one side's perspective, but I've found FIRE to be quite trustworthy in the past (and a news account in the March 5 Springfield News-Leader confirms many elements of FIRE's press release). If their statement of the facts is correct, then SMSU's actions are quite troubling.

If the newspaper is indeed set up as independent of the administration and the faculty advisor, then any attempt to constrain the newspaper via "university policy" would likely be unconstitutional; and even setting aside the legalities, it would be wrong as a matter of academic freedom. Likewise, if the professor isn't allowed to control the newspaper, it's hard to see how SMSU can properly go after the professor. (If the newspaper were an official curricular project, for instance one for which students got journalism course credit, and the professor taught that class and got teaching credit for that, then the university administration could, I think, in considerable measure control how that class is taught -- but that doesn't seem to be what's happening here.)

And they're especially troubling given how innocent the cartoon is (not that it's very funny, but it's surely not some sort of racist slur). Even genuinely offensive cartoons, of course, are constitutionally protected. But when something like this causes such a stir, then it shows a lack of perspective and common sense as well as a lack of respect for the First Amendment.

[Sasha Volokh,
3/26/2004 07:22:54 AM]Note to grad students: In summer 2002, I went to the Institute for Humane Studies' Social Change Workshop for grad students (and, as one of IHS's graduate summer research fellows, I was a TA of sorts at the workshop, presenting a paper and running discussion sections).

There's going to be another one from June 19 to 25, and you should apply. Will Wilkinson, who works at IHS, explains why it's such a blast -- smart students, wonderful faculty, interdisciplinary, the works.

[David Bernstein,
3/26/2004 06:38:02 AM]Interesting Virginia Postrel Column:Did you know?: Before unionization and its attendant wage compression took hold, smart young women (and assumedly men) demanded a premium on the teaching market? I can't imagine why smart, ambitious, hard-working, and not unusually altruistic individuals would be willing to commit to a career in public school teaching today, knowing that they would get paid exactly the same as slow, dull, lazy colleagues. The young women I've known who have gone into public school teaching with SAT scores and ambition well above the median have either left for more entrepreneurial educational ventures or obtained master's degrees and were quickly promoted into academic administration.

Never, never, never, not even with an epically hagiographic video of one's own life as an introduction, be the guy who has to give a speech after Bill Clinton.

Thursday, March 25, 2004

[Eugene Volokh,
3/25/2004 04:10:43 PM]Blogging as part of class requirements: Christine Hurt, a lawprof at Marquette, has been running an interesting pedagogical experiment:

[My] students were required to read the WSJ daily and to post weekly [here] on some topic that they read there. They were also required to comment to someone else's post four times in the semester. Both the students and I realized halfway through the semester that if I wanted to incentivize dialogue, then comments should be valued the same as posts. Next Fall, I will continue to use the blog, but will change the requirements to reflect this goal of dialogue and not just of independent "blurts." I do think the blog enables me to ascertain if students are catching on to concepts we discuss in class by watching them apply those same concepts to actual events.

This blog may or may not be of any interest to your general readers, but I think it is a rare blog in that it is not just professors blogging on legal topics or law students blogging on social or law school-related topics. Both students and [the 2] professors . . . blog on corporate law-related topics, with some guest bloggers (practitioners) chiming in on a semi-voluntary basis!

I spoke to [someone] from the NSA, about this subject a couple of years back. As you probably know, although the NSA has teams of cryptographers at its disposal, a large amount of the successful interception it carries out is simply due to exploiting software faults in communications software. Consequently, in their other role, as advisor to the DoD about communications security issues, they focus on software assurance to an extent that often takes newcomers by surprise.

The NSA used to have a requirement that only American citizens should be allowed to work on sensitive source code, because they considered there to be too great a risk of backdoors being placed in the code by foreign nationals . . . . More recently, because of the number of H1(B)s and green cards in the computer industry, it's been impractical for the NSA to insist on that. Instead, what they've encouraged -- and this is the interesting and quite clever part -- is that programmers and testers should be of different nationalities. If you have Israeli coders, get Arabic testers. If you have British coders, get French testers. And so on.

A cute solution to the problem. But I don't know if it ever worked. I suspect the NSA still insists, though, that source code for sensitive systems be written by American companies on American soil, even if it isn't written by American fingers.

Of course, even if the NSA's program worked for the NSA, it would be pretty expensive to adopt for the important source code and off-the-shelf object code used by lots of other organizations -- many of which are private companies -- that manage critical American infrastructure. Nor am I sure that it would work that well even if it were adopted. Still, it struck me as interesting enough to be worth mentioning.

Imagine there is something called "Law & Aesthetics" that is studied and taught at law schools. Now, write its encyclopedia entry.

There are no restrictions other than those suggested by the title of the encyclopedia entry. As you see fit, your assignment is to invent the history and/or substance of Law & Aesthetics, a discipline that does not presently exist. You are encouraged to:

invent or rewrite history in order to accommodate your creative vision.

attribute elements of the discipline to historical figures (artists, legal scholars, philosophers, judges, historians, etc.) or invent its participants out of whole cloth.

integrate strands of existing theories and realms of inquiry you deem relevant or create something from scratch.

chronicle the history and evolution of the discipline; catalog its adherents and critics and their contributions; detail its tenets and research program; summarize the leading books or articles; or all (or none) of the above.

be creative.

This creative writing contest is open to Boalt Hall Faculty, Students and Staff.* Winning entries will receive appropriate recognition. The author of the best entry will receive $150.00.

Entries should be submitted to LawAesthetics@yahoo.com. The text of this announcement is available on request at this email address. Additional information probably will not be provided, however, in order to maintain a level playing field. Entries should be longer than, say, a dictionary entry but probably no more than a thousand or twelve hundred words. The submissions deadline is Wednesday, April 7, 2004. Contest rules may change; however, the cash prize will be awarded if a minimum number of entries are received.

*and some others: the contest is open to Boalt Hall students, faculty, and staff; and to their friends, family, and household members, and to the friends of these people.

I am assured by the contest organizers that any reader of The Volokh Conspiracy is a friend of theirs.

His daughter would be singled out by not saying the Pledge, and would be coerced to participate. "Imagine you're a third-grader in a class of 30 kids. That's enormous pressure to put on a child" to conform, Newdow said.

I wonder if he's given any thought to how his daughter would feel if she goes down in history as the kid who took down the Pledge of Allegiance? Talk about being singled out! I wonder if he knows the story of William Murray, whose mother Madalyn Murray O'Hair got the Supreme Court to throw prayer out of the schools?

Today, William Murray is a born-again Christian, "the No. 1 spokesman for prayer in the schools," in the words of U.S. Sen. Jesse Helms. He is also the author of five books, the most recent being "Let Us Pray."

Before his mother died, Murray observed of his family that:

Jesus says that "following me will cause brother to hate brother and separate mother from son." In the case of my family, that is an absolute truth. Most people who study that passage see it abstractly, but in the case of my family . . . it has been split in a variety of ways because of my desire to follow Jesus. My brother, my oldest daughter, and my mother. . . .

Newdow, of course, may have a response: He might argue that he's defending the Constitution, defending the Constitution is the right thing to do, and he wants to teach his daughter to do the hard things even if it causes some social tension. He may also be a better judge of just how his daughter is likely to react on this. On the other hand, he might not be such a good judge of that; people with burning causes (even worthy causes) sometimes aren't quite as clear-sighted on such matters as they could be. Hard to tell for sure.

Note, incidentally, that Joe Roth, one of the children on whose behalf the leading school prayer case Engel v. Vitale was field, grew up to be chairman of Twentieth-Century Fox, run Disney Motion Pictures, and now head his own Revolution Studios. According to a Newsweek article (May 25, 1992), "'Joe had to stand up at a very tender age,' a friend says. 'It made him dogged . . . very tough.'" I've seen no articles reflecting his own views on being involved in the litigation; if anyone knows of any, please pass them along.

UPDATE: Clayton Cramer (who isn't wild about the Court's attempts to restrict religious speech by the government) notes that in his books, Murray does not come across as generally supporting teacher-led school prayer in classrooms, at least of the sort that the Court struck down in 1960s; Murray's views are apparently more complex -- he would endorse some prayers, such as graduation prayers, but not others. More in Cramer's post.

[Eugene Volokh,
3/25/2004 10:14:01 AM]Early state constitutions: Thorpe's American Charters Constitutions and Organic Laws 1492-1908 is an excellent resource, and it looks like it's now mostly online, together with some more recent state constitutions. (Thanks to Clayton Cramer for the pointer.)

[Eugene Volokh,
3/25/2004 10:10:29 AM]More on the British self-defense -- or is it? -- conviction:Matt Rustler, no enemy of self-defense rights, has some interesting details. (If the link doesn't take you to the right post, scroll down to "MORE CORRUPTION IN EUROPE.").

[Eugene Volokh,
3/25/2004 10:04:26 AM]Flags: A follow-up on the observation that there are few flags with any orange and brown on them, with thanks to many readers who responded:

Addition: Pink and purple seem scarce, too.

Explanations: The chief explanations seem to be (1) medieval heraldic conventions, (2) relative visibility from a distance, and (3) the relative cost of various dyes way back when the granddaddy flags were designed. Items 2 and 3 of course may well have influenced 1.

"Pakistan A 88 / 100 Best use of the star and crescent. Unfortunately, it depicts something astronomically impossible, namely the eclipse of the moon by a star. But perhaps it's not a star but a nuclear satellite-weapon aimed at India?"

"Guam F 20 / 100 Name of country written on flag in ugly typeface. Notice that the M of Guam is larger than the other letters. I have given it this high a grade because it would actually make quite a nice tea towel."

[Juan Non-Volokh,
3/25/2004 07:52:38 AM]Markets versus Politics - The Real Choice: David’s excellent point below is not just applicable to antitrust. Rather, it is the proper mode of analysis for all public policy questions, and it deserves to be reiterated. Too often policy arguments proceed as follows: A) the market “fails” because it does not produce the theoretically optimal result, therefore B) government intervention is necessary. But B does not follow from A. The failure of market processes to produce an optimal result does not ensure that the political process will do a better job. From a libertarian perspective – or any perspective that is inherently suspicious of government intervention – the burden should be on those advocating government intervention to explain why the political process can be expected to produce a better result than the marketplace. In such an inquiry, the theoretical virtues of government intervention are no more relevant than a basic equilibrium model of perfect competition. Both are blackboard abstractions that often have little bearing on what occurs in the real world. What matters is how political intervention -- and make no mistake, government intervention in the marketplace is always political -- is likely to affect the status quo ante, and whether the consequences of such intervention (and the attendant rent-seeking, transaction costs, etc.) constitute an improvement in the real world.

Political intervention in the marketplace may be well intentioned, but that does not make it any more likely to generate positive results. Indeed, insofar as noble intentions leave the likely consequences of such interventions unexamined, such policies may make us all worse off.

ADDENDUM: An example of well-intentioned political intervention with negative effects isthe Endangered Species Act. As I noted here, there is empirical evidence that in some parts of the country the ESA actually increases the rate of habitat loss.

UPDATE: Henry Farrell at Crooked Timber takes liberties with this post, and commenter ASG catches him being too cute by half.

[Jacob Levy,
3/25/2004 07:48:10 AM]Pledge: This year, as most years, teaching John Locke got me thinking about the Pledge of Allegiance.

One major issue in thinking about Locke's Second Treatise is the difference between express and tacit consent. Most people most of the time only tacitly consent to the government they're living under. They accept the protection of the laws for their persons and their property, and so they accept the duty to obey those laws in turn. They, like the foreigner who's just passing through on the roads, have accepted the existing government's jurisdiction for as long as they're present, but have an arm's-length relationship to it. Only a minority ever become "members" of society by expressly consenting to the government. As I read Locke, this makes them eligible to vote, be taxed, and be conscripted, and makes them ineligible to emigrate and may affect their eligibility to rebel in accordance with natural law. (I'm still not sure about the last; and I seem to be idiosyncratic in thinking that the terms of Locke's argument leave only express consenters eligible for taxation.)

In the United States, native-born citizens are very unlikely to ever expressly consent. Immigrants swear an oath of citizenship, but native-born citizens do not. The oath taken upon joining the military might count, but it's insufficient to make a citizen out of a noncitizen (noncitizens may serve in the military), so maybe not.

Except...

Except that nearly every schoolchild in America, every one who doesn't make a spectacle of him or herself by conscientiously objecting, is expected every schoolday to

pledge allegiance to the flag of the United States of AmericaAnd to the Republic for which it standsOne nation under God, indivisivible, with liberty and justice for all

which is, really, an awful lot like an oath of loyalty and citizenship. It's a thicker oath than the formal citizenship oath,

"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."

In particular, immigrants aren't required to swear that they consider the United States "indivisible" (still a controversial claim in the 1890s, when the pledge was written), that they consider it "one nation" (still a controversial claim even now), or that they understand there to be any particular relationship between the nation and God (though their oath itself is taken in God's name). Neither are immigrants expected to engage in the odd bit of iconolatry that is swearing allegiance to a flag, and only secondarily to the republic for which it stands. The substance of the Pledge is actually quite strange all around, making no mention of Constitution or laws, and elevating the concepts of flag and nation all out of proportion to their real importance in the American republic. It's a relic of both a nasty moment in American assimilationist and ethnic-nationalist ideology (the same moment that gave rise to the Blaine Amendments that are blocking school choice and that conservatives rightly perceive to be anti-Catholic anachronisms) and of a time when the Civil War remained in living memory. It was never a neutral statement of the patriotic values everyone ostensibly shared; it was a deeply partisan account of what those values were.

Maybe too much under Locke's influence, I'm of the view that oaths of loyalty matter, that they are to be taken seriously, and that their content is to be taken seriously. The current defenders of "under God" seem to be saying simultaneously that the Pledge is a matter of utmost civic importance and that it's a bit of harmless ceremonial claptrap. "Ceremonial Deism" is the phrase the Supreme Court has used in the past about, e.g., the announcement "God Save this honorable court!" and the motto "In God We Trust;" such stuff is held not to violate the Establishment Clause more or less on the grounds that it doesn't matter very much.

But there does seem to me something profoundly different between walking around with quarters in one's pocket that say "In God We Trust" and expecting millions of schoolchildren to swear an oath, every day, to "one nation, under God."

I know, I know, the Plegde isn't in any legal sense an oath of citizenship or loyalty. But it had the form and words of such an oath. The primary reason why it's not such an oath is that it's spoken by children who are incapable of understanding and consenting to its terms. But that seems to me good grounds for objecting to the whole business. If the words spoken meant what they said, then they shouldn't be expected of children, and shouldn't have to be repeated over and over again. If they don't mean what they say, then they degrade language and the sense of solemnity that should accompany the swearing of loyalty oaths. If the words are serious, then they're inappropriate for the context (and 'under God' is a violation of the Establishment Clause). If the words are not serious-- and they're not, anymore-- if they're just mindless blather, then they demean something that shouldn't be demeaned.

If we were to switch from the Pledge to a one-time citizenship oath sworn at age 18, I think-- I hope-- that the words wouldn't look much like the Pledge's words, and would look more like the extant citizenship oath, minus the passages about foreign princes and potentates.

None of this decisively tells one way or the other about the constitutionality of "Under God." If the whole pledge is mindless blather, then "Under God" is ceremonial Deism and is constitutional. But it does seem to me that the defenders of the Pledge ought to commit as to whether they think the words are mindless blather or not; and that there's something deeply objectionable about the whole enterprise either way.

[David Bernstein,
3/25/2004 07:29:06 AM]This post by Kieran at Crooked Timber on antitrust law and libertarianism leads to the following thoughts: The right way to look at antitrust law is not whether economic theory suggests that particular monopolies can and will exist that can, in theory, be corrected through government action, to the benefit of both consumer welfare and economic efficiency. Microsoft's browser may or may not be such a monopoly, I lack the expertise to judge. The real question is whether, once one establishes a regime of antitrust law, whether that regime is going to do more overall harm than good.

Sure, the antitrust authorities may identify "real" monopolists here and there. But they will also likely misapply economic theory, or apply the wrong economic theory, sometimes, and break up "monopolists" that were economically efficient and serving consumer welfare. Various companies will try their darndest to persuade the antitrust authorities that their competitors are "monopolists" that should be reined in. Every time they are wrong and the authorities don't believe them, their lobbying efforts (and the contrary lobbying efforts of the alleged monopolist) are a deadweight lost. Every time they are wrong and the antitrust authorities do believe them, further damage is done to the economy (plus the dead weight lobbying losses).

Moreover, there is no reason to assume that antitrust authorities will always be pursuing the common good. Antitrust enforcement, and antitrust law itself, will develop through political mechanisms, and the authorities will be sorely tempted to punish the enemies of their political allies and reward their friends. Demagogic politicians will order their governments to go after large companies for political gain, not for sound economic reasons. Much of American antitrust law for many years was based on no economic theory whatsoever, but on general mistrust of "bigness," a desire to protect mom and pop businesses from more efficient competition, and demagoguery starting with the American king of the genre, Teddy Roosevelt. And so on.

The losses from antitrust law can be huge: the costs of rent-seeking and countering rent-seeking alone can dwarf any gains from good antitrust enforcement, and antitrust enforcement won't necessarily be good. The question, to this extent, is whether you would rather have market outcomes be governed by Wall Street or K Street. Meanwhile, the losses from monopoly are not likely to be huge. The monopolist sells at a monopoly price, and gains monopoly prices, but the product is still, after all, on the market. And the available monopoly rents should lead to competitors trying to break the monopoly.

So, in my view at least, the libertarian case for not having antitrust law is not that the market is perfectly efficient, but that regulation is worse. I'd be content to leave antitrust law to price-fixing, as the Reagan Justice Department did, but that leaves the regulatory superstructure in place, to create further mischief in the future. So abolish the Antitrust Division, reduce the FTC's functions to interstate fraud, and give it jurisdiction over price-fixing, too. And then be content with the results with an imperfect market.

[Randy Barnett,
3/25/2004 06:37:07 AM]Clarke Updates: Instapundit is doing a nice job keeping up with the problems with Dick Clarke's book and testimony here (and scroll up for more). I agree with Stuart that serious criticisms of the government's failure to detect and prevent the atrocity of 9/11 should be taken seriously. But many of the "serious allegations" turn entirely on Clarke's credibility which seems to be imploding based on his prior contradictory statements in a variety of fora. This is looking more and more like a partisan hit by a demoted career staffer who happens to be promoting a book smack dab in the middle of the presidential election season.

And from my brief listen to the hearings while driving from Ann Arbor to Indianapolis yesterday, it seems like some Democratic commissioners are more interested in blasting Condie Rice for not testifying before them under oath and with bolstering the Clinton administration's handling of terrorism, than they are in the question which they were ostensibly convened to answer. But I must admit that the posturing made me turn off the hearings, and turn on some good driving music, sooner than I otherwise would so perhaps I had a skewed impression of the questioning.

UPDATE: Air travel guru Gary Leff e-mails to note that Scalia's round-trip ticket most likely originated in New Orleans, and not D.C., because "forgoing the outbound and using the return portion of a ticket only . . . is generally NOT acceptable even in the case of medical emergency -- it used to be but no longer is. And lack of space available accomodations on Air Force 2 would never have qualified, though an airline through the influence of its government relations department could presumably have made an exception." Scalia's memo itself is unclear on this point. Leff also notes that whether Scalia violated an airline's tariff rules by purchasing a round-trip ticket but only using one leg -- called throw-away ticketing if he used the first half and tossed the second -- depends on what airline he flew. It's prohibited on some airlines, but not others.

Wednesday, March 24, 2004

[Stuart Benjamin,
3/24/2004 05:58:10 PM]Why Dismissals of Clarke's Allegations Are Particularly Disappointing: We live in a partisan world, of course, and so it is no surprise when partisan Republicans attack Richard Clarke. But I find the attacks from Rush Limbaugh and other partisans particularly disappointing.

For most aspects of economic and social policy, ordinary citizens have access to the same data as the decisionmakers (e.g., unemployment figures, or rates of marriage among teenagers, or whatever). So we feel, justifiably, that we can make some judgments on our own about the wisdom of economic and social policy choices. We may be overconfident about our abilities in this regard, but there are data for our judgments. So when a former official comes forward and makes claims about the real actions and motivations of decisionmakers (e.g., the Administration wanted to help/hurt the rich/poor, and took X actions to effectuate that goal), we can evaluate those claims. The actions will generally be a matter of public record, and we can probably make some educated guesses about the motivations. At the same time, most citizens will not bother to engage in any detailed evaluations. So it does not seem outlandish that a sophisticated commentator might decide that she will take the time to analyze the former official's claims and then present her conclusions to the world. Many pundits do not engage in such careful analysis, but the point is that there is a role for such analysis by commentators, even if in execution it does not live up to its promise.

The situation is quite different for matters of national security. As every administration notes (e.g., the Bush Administration with respect to Iraq, the Clinton and Bush Administrations with respect to their actions against Al-Qaeda), much of the information that informs their decisions is classified. Their argument is that they cannot reveal this information, because that would compromise national security. This argument strikes me as legitimate (and as a former DOJ lawyer, how could I believe otherwise?), but it means that those outside a pretty small circle of government decisionmakers are in the dark about the data that inform Administration actions. Indeed, the rest of us often do not know what actions have been taken (because they are secret).

This means that, when a former key member of the policymaking team comes forward with an account of actions taken and not taken, and of the underlying data available to the decisionmakers, very few people have any basis for evaluating that account. The only competent evaluators are other members of that small circle. This also means that, if two members of that circle disagree on a question of fact, the rest of us have little basis for choosing one account over the another unless they give us more information (i.e., the basis for their factual assertions). If former key official A says X, and current key official B says not-X, it is hard to justify accepting either X or not-X. We can try to assess their motivations -- maybe the former official has an axe to grind, maybe the current official wants to deflect blame and/or protect the President (and thus remain in power) -- but A) that assessment is unlikely to yield a clear winner, in terms of credibility, and B) it doesn't address the basic question of whether or not X is true. Ideally, both sides will put forward not only their factual assertions but also the basis for them, giving us more information on which to ground our own conclusions.

What's particularly striking in the case of Richard Clarke, though, is that the Administration has not made much of an effort to tell the "not-X" story, much less given us a factual basis for believing the "not-X" story. By and large the Administration has not been contesting Clarke's factual assertions -- and some of their attempts in that regard have backfired (such as Hadley's suggestion to 60 Minutes that Bush did not meet with Clarke in the situation room on September 12, a meeting that has now been confirmed). We don't have X versus not-X, so much as X versus "X is not as it seems in context." And the Administration has given us little factual basis for believing even that story. The Administration's version may be the correct one, but those of us outside the small circle of policy makers have little basis for so concluding.

In light of all the above, those outside that small circle who are seeking to dismiss Clarke's allegations seem to be on particularly weak ground. He has made very serious allegations and put forward the basis for them, and thus far the Administration has done little to rebut them. Indeed, as Brad DeLong ably catalogues, many of the Administration's responses contradict one another (in fact, many statements by the same Administration official are inconsistent). Until the Administration responds more directly to his allegations (and the basis for them), I can't see the basis on which some can dismiss them. Commentators' dismissals appear to be a matter of faith, not reason.

[Jacob Levy,
3/24/2004 04:35:41 PM]First-hand: How do University of Chicago students spend their spring breaks?

[Eugene Volokh,
3/24/2004 11:28:48 AM]Flag colors: So why do so few countries' flags have brown or orange on them? Are those just objectively, cross-culturally ugly or non-patriotism-inducing colors?

[David Bernstein,
3/24/2004 08:39:17 AM]Polygamy and Gay Marriage: Maggie Gallagher has a seriously confused piece in the Weekly Standard that starts off by suggesting the danger that gay marriage will lead to polygamous marriage. She even throws in an Islamic bugaboo, wondering how long it will take Islamic leaders to recognize that the U.S. is not serious about enforcing its marriage norms and demand an acceptance of Muslim polygamy.

Yet, later in the same piece, she emphasizes that heterosexual marriage is deeply rooted in Christian and Jewish "not to mention" Muslim tradition. Well, polygamous marriage is deeply-rooted in Muslim tradition, and, for that matter, Mizrahi (Eastern, non-Ashkenazic) Jews practiced polygamy from Mosaic times until the middle of the twentieth century when the new State of Israel banned the practice; and Ashkenazic Jews only banned the practice in the Middle Ages under Christian pressure. So, by Ms. Gallagher's reasoning, gay marriage may be awful, but maybe polygamy isn't so bad. Then there's oddity of both citing Islam as a source of eternal wisdom for its views on heterosexual marriage and as an existential moral danger for its views on polygamy in the same piece.

If the anti-gay marriage forces are going to win the day, they are going to have to do better than such incoherent claptrap.

I'll blog more about this some other time, but how come no one seems to have written (UPDATE: except for this snide piece) about the fact that the legal accouterments of divorce--a unilateral breakup leads to alimony, equal division of assets, etc., don't seem to be at all appropriate for a typical gay male couple? (UPDATE: because, to give you a very brief preview, they are generally intended to protect a partner who has given up financial gain and human capital for family reasons, and that is generally women of childbearing age).

UPDATE: Nate Oman has an interesting post on the federal effort to stamp out polygamous marriage among Mormons in the 19th century. It wasn't easy, and it wasn't entirely successful.

[Juan Non-Volokh,
3/24/2004 07:54:32 AM]Bush's Worst Appellate Nominee: I have been a big fan of President Bush's judicial nominations, especially to the appellate courts. By and large, President Bush has appointed extremely capable and distinguished attorneys to the appellate bench. Indeed, the lowest ABA rating of any of Bush's initial nominees was received by Roger Gregory, a Clinton appointee Bush renominated in a (failed) effort to build good will with Senate Democrats. While there is no question the majority of Bush nominees have been quite conservative in their judicial philosophy, I believe the vast majority of them will acquit themselves with dignity, display intellectual rigor in their opinions, and adhere to legal principle. Americans should be proud to have the likes of John Roberts, Michael McConnell, Jeffrey Sutton, Jay Bybee, and even William Pryor on the federal bench (even if the latter was given a recess appointment).

Bush's nomination of William G. Myers III to the U.S. Court of Appeals for the Ninth Circuit does not measure up to the standard set by this administration with the bulk of its judicial appointments. While I have no doubt that Myers is a capable attorney, I do not believe that he is particularly well-suited to the federal bench. While serving as solicitor for the Bush Interior Department, Myers failed to distinguish himself in any meangiful way. To the contrary, he appeared to adopt knee-jerk policy positions with relatively little thought or consideration. In one case, he pushed through a doctrinaire and poorly reasoned interpretation of a Supreme Court case in which he was involved -- an interpretation which may have satisfied Myers' pro-grazing bias, but undercut the administration's efforts to adopt market-based reforms on public lands. Worse, at least in the context of Myers' judicial nomination, the legal opinion had to be subsequently "clarified" because Myers' initial interpretation was so poor. (The initial opinion, M-37008, is here. The clarification memo is here.) Although I do not accept the charges of some groups that Myers is anti-environmental -- one can be pro-environment and anti-federal regulation -- I agree he was a poor choice for the federal bench.

As things stand, Myers nomination will likely be approved tomorrow by the Judiciary Committee on a 10-9 party-line vote. After that, he may well join the ranks of Bush's filibustered nominees. While I generally believe that the Senate should provide broad deference to a President's judicial nominations, I will shed no tears if this nomination goes down in flames.

[David Bernstein,
3/24/2004 07:50:17 AM]Sheikh Yassin, Hero? Can a Western newspaper really publish a fawning obituary of Sheikh Yassin without mentioning a single one of his innocent victims? The Guardian can. Thanks to Scott Burgess for the pointer.

[David Bernstein,
3/24/2004 07:37:28 AM]Twelve Year Old (Update: Now Determined to be Fourteen Years Old) Suicide Bomber: Ha'aretz reports: "Israel Defense Forces paratroopers caught a Palestinian boy, aged 12, wearing an explosive belt at the Hawara roadblock south of Nablus in the West Bank on Wednesday afternoon... The army believes that the boy was meant to detonate the belt near the soldiers or near the nearby army base."

This is not an anomaly, but the final product of years of brainwashing in Palestinian schools and media, glorifying "shaheeds" and telling children that their greatest duty is to become shaheeds. This short video, well worth viewing, shows what Palestinian children are taught. Can Palestinian society become any sicker? Israel's security barrier can't be built soon enough.

UPDATE: "Abdu told soldiers of his dream of receiving 70 virgins in heaven, which his dispatchers had promised him, and said that he had been tempted by the promise of sexual relations with the virgins. He said that he had been bullied at school for his poor academic performance and that he had wanted 'to be a hero.'" So much for the "myth" that suicide bombers are tempted with promises of seventy virgins. Also, indications are that the kid was borderline retarded. Real heroes those Tanzim "fighters" are, sending a slow fourteen year old to blow himself up!

[Juan Non-Volokh,
3/24/2004 07:27:11 AM]Scalia's Real Ethical Lapse: I believe Justice Scalia was correct not to recuse himself in the Energy Task Force case. His memo showed that many of the allegations were based on false premises. E.J. Dionne may believe that Scalia should recuse because of his close relationship to the administration (and his role in Bush v. Gore), fails to acknowledge -- let alone consider -- how such a policy would impact the Court. As Scalia noted, there have been many justices with close personal ties to the White House, and this has never been the basis for a recusal in a suit brought against a government official in his official capacity. Should Justice White have recused in cases involving RFK? I think not. (Nor, for the record, do I believe Justice Ginsburg should recuse in cases involving the NOW Legal Defense and Education Fund.)

Nonetheless, as Ian Ayres and Barry Nalebuff point out, Scalia's memo does suggest that he purchased a round-trip plane ticket under false pretenses. They write in the NYT:

He made a promise without any intention of fulfilling it. Justice Scalia is no doubt familiar with the legal term for such an act: it's called promissory fraud.

The airlines' policy may be annoying, inconvenient and customer-unfriendly. But they can legally insist that their passengers abide by it. And certainly a strict believer in the rule of law like Justice Scalia would agree. Then again, if a case about the airlines' pricing practices ever reaches the Supreme Court, maybe Justice Scalia should recuse himself.

UPDATE: Several readers think the Ayres-Nalebuff argument is too cute by half. Even assuming that it would be wrong for Scalia to purchase a less-expensive round-trip ticket if he had no intention of using both legs -- and that a contract with such terms existed between the Justice and the airline, it's still not clear Scalia did anything wrong. Rabbi Mark Ankcorn writes:

Scalia's memo specifically says he was invited by VP Cheney to fly with him on a "space available basis," which as anyone who's ever flown government (i.e. Military Airlift Command, among many others) knows means you can be bumped at any time up to the point where the wheels lift off from the ground. Given that his flight with the Vice President was not guaranteed and he wanted to have a vacation regardless of the Vice President's plans, he purchased a round-trip ticket to ensure that he would get there on time. Not using the first leg of a rt ticket because of unforeseen circumstances is specifically allowed by both policy and contract terms.

As for the underlying issue, I believe it is perfectly acceptable for airlines to offer less-expensive round-trip tickets on the condition that the purchaser commit to flying round-trip. Although such a contract may be difficult, if not impossible, to enforce (other than by canceling the second leg of a trip if the first leg is unused, as some airlines do), an individual is morally bound to live up to the terms of such a contract into which they enter voluntarily.

UPDATE: TMLutas and Contendem both note that Ayres and Nalebuff engage in a bit of bait-and-switch, by comparing the price of a restricted round-trip with an unrestriced one-way fare, the latter being far more expensive than a restricted one-way fare.

[Randy Barnett,
3/24/2004 06:46:42 AM]Reader Defense of the President: I received the following thoughtful response from a reader, an American now living in Europe:

I agree with you that the President should be more forthright, but this almost never happens when in the midst of a war.

I have been doing research into WWII and when the Germans launched the offensive that became the Battle of the Bulge, the Americans were simply stunned [Think TET Offensive circa 1944]. There was quite a bit of criticism of the government that it should have known better, but the Roosevelt administration simply stonewalled and shut down opposition that was too loud. Roosevelt gets no flak for this because we were in an important war. Furthermore, the NY Times in 1945 began investigating the failed Sherman tank for its inadequacy and the government stonewalled on that as well, despite the correct charge that thousands died because of this mistake.

The problem is that today, most on the left deny there's a war going on. So any failure is picked apart. In my view it doesn't' matter how savvy the Prez is (and he isn't very media savvy) the Left just keeps pushing until anything sticks. In this environment something always will. If it's not the 911 probe, it's something else.

Heck, here in Europe the attack on Madrid is seen as refuting Bush, though I don't see how that is possible. Think about it, we won the war quickly, humanely and have done a great job of helping Iraq move to a stable democracy. The worst thing is that there were no WMDs. In a different world people would sigh with relief. Here it's GOTCHA.

You know the Manhattan Project was started because we feared the Germans had the bomb. It turns out they were no where near to getting it. I don't see anyone who bitched about that. Anyway, keep on writing.

I generally concur with this writer--especially in his assertion that there is a divide between those who think we have been in a state of war since 9/11 and those who do not think we have been at war since then--but I still think that, in this media age, when asserting a controversial doctrine of preemption--which is necessarily based on intelligence of present capability and future intentions--when the capability turns out not to be as predicted, the President or someone in his administration should make some effort to explain why everyone was fooled by the intelligence. I myself am willing to give this President the benefit of the doubt on this question--WMDs played only a partial role in why I thought and still think the war was legal, justified, and good policy--but this country is deeply divided politically and this political situation needs to be factored into any war strategy. Initially, and perhaps even still, many would accept a credible explanation for why no explanation can be made at this time. Of course, no explanation will satisfy the most intense of Bush haters--especially those who cannot distinguish between the concept of a mistake and the concept of a lie--but some sort of explanation would be of great assistance to those who support the war or those who may not know what to think about it.

[David Bernstein,
3/24/2004 06:45:40 AM]Justice Harlan's Libertarian Dissent in Plessy v. Ferguson: I've recently reread Plessy v. Ferguson, and I was struck by some very libertarian language in the opinion that is almost always edited out of it by casebook editors:

It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of commodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute, is that it interferes with the personal freedom of citizens. 'Personal liberty,' it has been well said, 'consists in the power of locomotion, of changing situation, or removing one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint, unless by due course of law.' If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.

Thus, while Harlan was very eloquent in his denunciation of the racist aspects the train segregation law at issue in Plessy, he was well aware that segregation was imposed by the state, contrary to market forces, on unwilling blacks, some unwilling whites, a larger number of indifferent whites, and, for that matter, an unwilling train company. Indeed, Harlan thought that it was the law's infringement on personal liberty that was its fundamental constitutional flaw.

Modern liberal scholars have been tempted to portray Harlan as an earlier incarnation of Earl Warren or William Brennan, implicitly on the theory that race liberals are always and must always have been liberals on all other issues. Harlan, it should be noted, was not always liberal on race--he was virulently anti-Chinese. But his jurisprudence does not fit well into modern liberal-conservative categories. He was a liberal on civil rights, a nationalist on economic issues, including the scope of the commerce clause, a strong believer in, and proponent of, natural rights theory, a moderate supporter of liberty of contract (Adair v. United States), and a sufficiently strong opponent of "class legislation" that he actually wrote an opinion invalidated an anti-railroad law that drew a dissent from the most libertarian Justice on the Court, David Brewer (Atchison, T. & S. F. R. Co. v. Matthews, 174 U.S. 96 (1899).)

In any event, it's worth noting for much of American history, it's hard to find a strong correlation between racial views and views on statism versus libertarianism. The Supreme Court itself provides handy examples. The two strongest libertarians on the Court around the turn of the century, Brewer and Peckham, were also the most sympathetic to the Chinese, and Brewer, for his day, was also reasonably sympathetic with African Americans, especially in his private life. Holmes, who claimed to like laissez-faire but almost always voted for statism, had an appalling record on civil rights issues. But then again, Justice James McReynolds, a southerner and one of the leaders of the Court's libertarian wing in the 1920s and 30s, was a horrible racist and anti-Semite. On the other hand, McReynolds wrote an opinion protecting the rights of Japanese parents in Hawaii to teach their children in Japanese language schools. And so on.

[Tyler Cowen,
3/24/2004 05:47:22 AM]Oregon county bans all marriage: Not a joke, read here. The bottom line?: "As of Wednesday, officials in the county of 79,000 people will begin telling couples applying for licenses to go elsewhere until the gay marriage debate is settled. "It may seem odd," Benton County Commissioner Linda Modrell told Reuters in a telephone interview, but "we need to treat everyone in our county equally.""

"Educated Guesswork has an insightful response to the ongoing Grey Album controversy (Infringing mixes). The proposal is that rather than distribute the fully remixed version of the Beatle's White Album with Jay-Z's Black Album, one could distribute the mechanical instructions for remixing the albums: a remix recipe if you will. Those interested in the Grey Album would have to have access to both the White Album and Black Album in order to make use of the recipe, but the traditional elements of copyright would not be implicated in such a scheme. I believe that this is a brilliant model for our rip-mix-burn culture.

Of course, despite the fact that the traditional elements of copyright are not implicated, copyright holders do not like this vision of the remixed future. Indeed, that is one of the major issues in question in the ongoing "Clean Flicks" case involving similar technology used with DVDs. I say, let a thousand edits bloom, let us hurry the future of digital annotations."

The full post offers useful links as well. It is debated how easy software can make this home remixing. For relevant links, click here, here, and here. Personally, I would like instructions for remixing Doris Day and Jamaican dancehall music.

"The number of gays dismissed from the military under the Pentagon's "don't ask, don't tell" policy has dropped to its lowest level in nine years as U.S. forces fought in Afghanistan and Iraq, according to a report by an advocacy group.

The military discharged 787 gay men and lesbians last year, according to the Servicemembers Legal Defense Network. It attributed the decline to the importance of U.S. operations in Afghanistan and Iraq.

The figure marks a 17 percent decrease from 2002 and a 39 percent drop from 2001, just before the conflicts began in Afghanistan and Iraq.

"You have to ask yourself, and you have to ask the Pentagon, why are the discharges going down?" said C. Dixon Osburn, executive director of the advocacy group and one of the report's authors. "When they need people, they keep them. When they don't, they implement their policy of discrimination with greater force.""

I'm all for a lower level of dismissals, but let's drop the hypocrisy. Examples such as this show that banning gays from the military conflicts with national security objectives. Is there any doubt what our priority should be?

[Randy Barnett,
3/24/2004 04:19:50 AM]Andrew Sullivan: 3/11--Europe's Second Munich? In case you missed this essay by Andrew Sullivan in the Sunday Times of London, it is very long and very good. Read it from the beginning, but here is how it ends:

It should be conceded immediately that the United States has been neither perfect in its conduct of the war nor innocent in its long history of engagement with the Middle East. Looking back with the advantage of hindsight, you could well argue that the U.S. committed too few troops to Afghanistan, misjudged the nuclear shenanigans in Pakistan, woefully under-estimated the security needs in post-war Iraq, and failed to mount as aggressive a diplomatic offensive in the months before the Iraq war as was necessary. It would also be hard to find characters more likely to rub Europeans up the wrong way than George Bush and Donald Rumsfeld. So let's concede all that. Let's concede also that almost every Western government misread the intelligence on Saddam's weapons of mass destruction. The deeper point is still this: even if you concede all this, the Islamist war against the West was not created by these mistakes. It existed and grew in strength and potency throughout the 1990s. it draws its roots from the Egyptian Brotherhood in the 1970s and 1980s. It is quite candid in its goals: expulsion of all infidels from Islamic lands, the subjugation of political pluralism to fascistic theocracy, the elimination of all Jews anywhere, the enslavement of women, the murder of homosexuals, and the expansion of a new Islamic realm up to and beyond the medieval boundaries of Islam's golden past. Bin Laden spoke of reclaiming Andalusia in Spain long before George W. Bush was even president. He was building terror camps and seeking weapons of mass destruction while Bill Clinton was in the White House. Blaming the policeman for exposing and punishing the criminal may feel good temporarily. But it is a fool's errand.

And the result of the counter-attack by the West - for all its mistakes - is a real, if still fragile, advance in Afghanistan and Iraq. I'm sorry, Mr Zapatero, but the liberation of millions from two of the most brutal police states in history is not now and never could be described as "a disaster." Even to utter that sentiment is to have lost even the faintest sense of moral bearings. And it is in absolutely no-one's interest either in Europe or America to see those two devastated countries implode or their fledgling democracies fail. Withdrawal from either place now would be catastrophic not just for those countries but for the momentum and power it would give those forces that now seek to destroy the West and any semblance of freedom in the Middle East. For Americans and Europeans to bicker among themselves about the past when their shared and mutual future hangs in the balance is close to suicidal.

We are in danger of missing the most important fact in front of us. It's a fact that, to his credit, Tony Blair has long grasped and still refuses to abandon. That fact is that we are at war. Local terrorism by itself, rooted in territorial or ethnic grievances, might be perceived as something less than a war. But global terrorism, fueled by a unifying Islamist ideology, and potentially armed with weapons more powerful than anything used by terrorists before, is a far more formidable foe. Appeasing this force will strengthen it; blaming allies because they have dared to confront it is simply to play into the hands of the enemy. To say so is not McCarthyite, as some have claimed. In free societies, free people should be able to differ about this with no consequences at all, just as the electorate in Spain should be perfectly free to exercise its democratic choice. That freedom of thought and discussion is what we are defending, after all. But that does not mean that that choice to appease or avoid is not a disastrous and potentially fatal one. What happened last week in Spain was easily the gravest event since al Qaeda struck the streets of New York. It's a portent of catastrophe for Europe. And only Europe, in the last resort, will be able to reverse it.

Tuesday, March 23, 2004

[Eugene Volokh,
3/23/2004 09:16:28 PM]Religious charities, government aid, and more:Mirror of Justice has some great posts on religious charities and the strings that may come attached with government aid, the Catholic Charities case, Catholic lawyers and the Church scandal, and more -- much worth reading.

[David Bernstein,
3/23/2004 07:58:35 PM]Gotta Give Bush Lots of Credit for This One: "Any country has the right to defend itself from terror. Israel has the right to defend herself from terror. And as she does so, I hope she keeps consequences in mind as to how to make sure we stay on the path to peace," Bush said in his first public comment on Monday's assassination of Hamas leader Ahmed Yassin. From Reuters, via Little Green Footballs.

Reuters, by the way, can't seem to help itself, and blatantly editorializes in the midst of its news story: "Yassin's killing was a major setback to the U.S. 'road map' to Middle East peace, already mired in tit-for-tat violence." I don't recall anything in the road map that required Israel to sit back and allow its citizens to be murdered by Hamas, as happened last week in Ashdod. And the idea that the roadmap itself is worth anything so long as Arafat--who didn't hesitate to praise Yassin as a martyr who is on his way to heaven--remains in control of the Palestinian security services is a joke, and a pretense that the Bush Administration itself doesn't entertain.

[Randy Barnett,
3/23/2004 05:12:08 PM]Notre Dame Speech Postponed! What with coordinating over 40 speaking dates, I suppose a screw up was bound to happen. Due to an understandable miscommunication, both the Michigan and Notre Dame Federalist Society chapters scheduled my talk for tomorrow, Wednesday, March 24th. I am very grateful that faculty commentator Patricia Bellia and the Notre Dame Federalists agreed to reschedule my talk for Thursday, April 15th (exact time to be announced). So I will be speaking tomorrow, Wednesday at the University of Michigan law school at noon as originally announced. Professor Don Herzog will comment. On Thursday, I will be at IU Bloomington, and on Friday at St. Louis University. My apologies to anyone who was planning to attend tomorrow at Notre Dame.

[David Bernstein,
3/23/2004 03:59:21 PM]USA Today Scandal Update: This Salon story about Kelley's fabrications is headlined, "Bloodthirsty Arabs, Vigilante Jews," but no bloodthirsty Arabs appearing in any of Kelley's stories are actually noted by the author. Rather, the story talks about a fabricated Pakistani child who wants to blow up the World Trade Center (Pakistanis are not, of course, Arabs; surely Salon headline writers know this?), and the possibility that Kelly fabricated having witnessed a Palestinian ambulance carrying weaponry--a practice for which there is ample alternative documentation. My previous post on Kelley can be found here.

[Randy Barnett,
3/23/2004 03:18:39 PM]The Administration's Costly Mistake: I had planned to blog about this over the weekend, but got side tracked. In light of the controversy over Clarke's accusations and especially the administration's response--and the discussion of it by my fellow Conspirators--I think Andrew Sullivan is on the right track. Though he is writing in the context of WMD's it applies here as well:

A considerable number of Americans -- including many in the pro-war camp -- believe this administration has not been forthright enough about the reasons for the intelligence failure. What the president should have done, in my view, was give a talk to the American people a few months ago, tell them exactly what we had and hadn't found, and explain that, although some of the intelligence turned out to be flawed, he still took the right decision in the circumstances. Bush made too much of the WMDs before the war as a casus belli not to confront this issue directly when it emerged we were wrong. Instead, he acted defensively. He first denied there was a problem, then he dismissed the problem, then he justified his actions regardless, without taking full responsibility for the errors. In a word, it made him look insecure and weak. Yes, there was a risk in fussing up directly to an intelligence failure. But it turns out that the risk of simply ducking and spinning was greater. The reason he has lost standing is because insecurity is not something people look for in a war leader. There were many times that Churchill had to tell Britons of mistakes or failures or difficulties. When confronted with errors of the kind that Bush's intelligence made in Iraq, a good war leader steps up to the plate. When asked about the lack of stockpiles of WMDs as opposed to evidence of possible WMD programs, such a leader doesn't irritatedly respond, "What's the difference?" Part of the Aznar lesson is that people don't like being bamboozled. If Bush doesn't learn that soon, he may learn it the hard way in November.(my bold)

(John Stewart made much the same observation of the administration at his Boston concert last Saturday night--though he was much funnier.) Bush (or someone) needed to explain exactly what made them think Iraq had WMDs. Some have speculated that it was electronic surveillance of inter-Iraqi discussion of WMD's that was either disinformation or deliberate misleading by or of Saddam. But this is mere speculation. The administration actually knows what happened and needed to explain it. Even if sources and methods are somewhat compromised, this is far better than compromising political support for the entire mission. The American people would understand a good faith reliance on bad intelligence, but it would be much easier if they had some idea of the nature of the bad intelligence that led to inaccurate conclusions.

Part of this is simply the price one pays for an inarticulate President. I vehemently reject the equation of articulateness with intelligence. But inarticulateness can be a serious liability when nuanced explanations from the Commander-in-Chief are required. But I do not, however, believe that inarticulateness is the whole problem. I know not the cause, only the effect. And the effect is as Andrew Sullivan describes: The Bush team, the President himself, does not address serious questions raised about its conduct in a completely careful and serious manner. Bush's falling approval numbers, as well as his falling trustworthy numbers, are in large measure a product of the primary season in which he was the object of unrelenting attacks ("Bush lied!"). But an even larger part of the problem lies at the doorstep of the administration itself. For these charges would not have been nearly as effective if the President and his team had more effectively confronted and accounted for their own obvious errors.

[Jacob Levy,
3/23/2004 01:39:13 PM]I'm no expert... On the ins and outs of counterterrorism policy, or the national security and intelligence bureaucracy more generally. Dan Drezner is much closer to being such an expert. When I walked into his office and said, "So what should we think about Clarke?" he replied that he was writing his blog post at that very moment.

So, does Clarke have a personal incentive to stick it to this administration? Absolutely. Does he know what he's talking about? Absolutely. Can what he says can be ignored? Absolutely not.

There's much more.

I have to say that the administration's responses are making Clarke look more and more credible all the time. See lotsfromJosh Marshall, and this roundup from Ryan Lizza. Particularly damaging is Dick Cheney arguing that Clarke doesn't know what he's talking about because the Bush administration moved him off al-Qaeda duty and onto cyberterrorism-- which did take place, but a month after 9/11.

Everything Clarke says about the White House in the months before and days immediately after 9/11 can be true without substantially impugning either the post-9/11 counterterrorism policy or the war in Iraq. What his account does necessarily impugn is the judgment and decision-making abilities of the administration principals. In particular, it bears out the charge Matt Yglesias has been making since before the Clarke story debuted: that the administration's security principals were so state-centric in their focus that it impaired their ability to understand the magnitude of the al-Qaeda threat. (See here,here,here, and here.)

It's not as though I knew what Matt charges Rice and Rumsfeld didn't know in 2000-01-- that non-state terrorists were a or the central threat to American national security. But it seems like Clarke did know that, and tried to communicate it-- and it seems he met an excess of resistance from officials who were state-centric in general and Iraq-centric in particular.

As Dan also points out,

It's worth remembering that every new administration needs about six months to work out the foreign policy kinks -- flash back to the Clinton team's firxt six months if you think this is a recent problem. To claim that they were slow to move on Al Qaeda misses the point -- unless it was a campaign issue, every new administration is slow to move on every policy dimension.

Furthermore, as the Washington Post reports, in the end the administration did get this one right, in the form of a September 10, 2001 deputies meeting that agreed upon a three-part, three-year strategy to eject Al Qaeda from Afghanistan. For all of Clarke's accusations about the Bush team's neglect, it's hard to see how things would have changed if this decision had been made a few months earlier. Post-9/11, for all of Clarke's claims about intimidation to show Iraq caused 9/11, the policy outcome was that we ejected the Taliban from Afghanistan. Iraq was put on the back burner. I'm someone who's been less than thrilled with Bush's management of foreign policy. Some of what Clarke says disturbs me, particularly about homeland security. But for this case, it does look like the system worked.

The best thing for this administration is to say in response to Clarke would be: "Yes, if we could turn back time, we'd have given AQ more consideration. But it probably would not have prevented 9/11. And don't claim that we could solve a problem in eight months that the last team -- in which Clarke was the lead on this policy front -- couldn't solve over eight years."

Clarke's account doesn't affect the underlying argument for going into Iraq; it doesn't affect the evaluation of the Afghan campaign; and it might not mean that anything was left undone pre-9/11 that one could have known should have been done. But it does affect how we should view the judgment, the competence, and the trustworthiness of the administration pursuing those policies.

[Tyler Cowen,
3/23/2004 12:23:07 PM]Black + White = Grey: Surely you know the Beatles's White Album, and rapper Jay-Z did the Black Album. One enterprising producer (Brian Burton) mixed the two together, using creative sampling techniques. He came up with The Grey Album, which drew legal opposition from The Beatles. Imagine rap beats, riffs and lyrics with White Album instrumentals and vocal snippets in the background. This article provides the best survey of the debate I have seen so far.

The case for allowing such remixes?:

"...the law gives copyright owners too much control, in part because getting permission to sample an existing work is rarely as simple as one artist calling another and asking. They tend to peg the artists' record labels as the bad guys and unsung musicians as the victims.

"Sampling is something that's been sort of made illegal by the major labels over the last decade and a half," says Nicholas Reville, co-founder of Downhill Battle, an independent-music advocacy group based in Worcester, Mass., that spearheaded efforts to distribute Burton's work.

"It sounds hyperbolic, but they really have banned an art form from the mainstream. This wasn't about getting whatever album for free just to defy the major labels, it was about making sure that they weren't able to censor this work of art and about [demonstrating] why there needs to be a reasonable and practical sampling right.""

The best argument against such practices?:

""A one-off, isolated thing like 'The Grey Album,' yeah, it's interesting," Carter says. "But I think we're going to be getting a lot of it. You're going to get 'The Dark Side of the Moon' album put together with this, 'Sandinista' with Bob Marley. It's gonna be crazy. I think it's gonna get out of control.""

I suspect that the latter view is correct, although in any single instance allowing the sampling increases social welfare. By the way, the music is spectacular. It is not everyone's cup of tea, but if you think you might like it, you probably will.

[A]s I understand it, there are two issues [related to the Newdow Pledge of Allegiance case]:1) whether the father has standing [given that he's not the custodial parent]; and2) whether the use of "under God" in the Pledge violates the Establishment Clause.

Say the Court reverses based on standing, and as a result, does not reach the Pledge issue. What happens to the 9th Circuit's ruling on the Pledge issue? A reversal on standing means that the federal courts (both 9th Circuit and district court) never had jurisdiction to decide the case, so what happens to the 9th Circuit's decision? Would schools within the 9th Circuit no longer be bound by the decision? ]What] effect, if any, would the decision have on district courts (or future 9th Circuit panels) in a case where the plaintiff did have standing?

I haven't focused that closely on these issues, but here's my sense:

If the Court reverses the case on standing grounds, the Ninth Circuit's decision will be vacated, and no longer binding precedent. Neither district courts nor school boards would be bound by it.

District courts in the Ninth Circuit might still be influenced by the Establishment Clause analysis in the decision, since a reversal on standing grounds doesn't express any view on the Supreme Court's part on the merits. The Ninth Circuit's merits argument might thus remain persuasive to district courts, even though it won't strictly be binding. But of course how persuaded a district judge will be by it will turn on the district judge's own sense of the matter.

[Eugene Volokh,
3/23/2004 10:12:55 AM]At the risk of repeating myself -- no, at the certainty of repeating myself -- I thought I'd rerun something I posted last week. I heard the trope I object to below re-quoted in a radio broadcast today, and got mad all over again:

As readers of this blog know, I've been quite critical of people calling others "traitors" simply because they disagree with them about the war or about foreign policy. There should be plenty of room in civil debate for good-faith disagreement about what's good for the country. Moreover, decent Americans can still sometimes consider the legitimate interests beyond the American national interest -- for instance, they might oppose an attack on some country because of a concern about the country's innocent citizens, whether or not the attack is in the interests of America's citizens. It's neither fair nor productive to reduce legitimate policy disagreements to accusations of lack of patriotism, or, worse still, treason.

But if this is true, then what's with all this that we've been hearing about "Benedict Arnold CEOs"? There are lots of hard and interesting questions about how American businessmen should deal with international competition. Some think that outsourcing is on balance bad for America, others think it's good. Some think that businessmen should focus first and foremost on the interests of America generally, others that businessmen should primarily serve the interests of their shareholders (within, of course, the boundaries of the law) -- or that outsourcing helps both shareholders and, ultimately, America generally, since without it we'd lose our competitive edge and thus have to lay off even more people. Reasonable minds can differ on this. But there's no justification for waging this battle through slurs and insults, and allusions (even if clearly hyperbolic) to a man whose name has become a snonym for "traitor."

And if I'm mistaken, and "Benedict Arnold" is permissible political hyperbole to be used against people whose economic policies you think undermine the American national interest, then why isn't "traitor" permissible political hyperbole to be used against people whose foreign policy you think undermines the American national interest?

OK, I promise, that's it for the reruns.

[Eugene Volokh,
3/23/2004 10:01:08 AM]In the record:Howard Bashman (How Appealing) reports that a blog post of ours was just "entered into the record of today's Senate Judiciary Committee hearing on 'A Proposed Constitutional Amendment to Preserve Traditional Marriage,'" by U.S. Senator John Cornyn (R-TX). I'm tickled pink! Many thanks to Howard for alerting me to this.

[Jacob Levy,
3/23/2004 09:30:39 AM]Cornered: I disagree with Ramesh Ponnuru a lot; but he's a very smart guy and an honest and civil debater. His stuff keeps me coming back to the Corner (even more than Jonah Goldberg's Star Trek and comic book and Simpsons references-- after all, geeky pop culture stuff isn't that hard to find on the web, and one doesn't usually have to scroll past endless "buggery, buggery, buggery" obsessiveness to get to it.) Today see: this post on the Spanish election and starting here (scroll up to continue) on revisions to the Federal Marriage Amendment.

[David Bernstein,
3/23/2004 09:00:19 AM]Arab Citizens of Israel: Israel has made many, many (many!) egregious errors in dealing with its Arab citizens. Unfortunately, the end result of these errors, combined with the latent hostility of an Arab community that has never fully accepted the legitimacy of Israel, is that any settlement that is ultimately reached with the Palestinians in the West Bank and Gaze will also have to deal with the Palestinians in the "Arab triangle" in the Galilee. Palestinian Arabs (not including Bedouins and Druze) make up about 15% of Israel's population. In some areas, like Haifa, they are reasonably well-integrated into Israeli society. In the Galilee, they are not. As I said, Israel has made many errors in dealing with this population (how much better India seems to have handled its own Muslim minority, despite hostilities with Pakistan, or am I wrong about that?), but I'm afraid it's too late too do much about it. There is much talk about how Israeli Arabs, despite formal legal equality with the exception of an exemption from military service, are treated as second-class citizens. But really, if you were an Israeli Jew, regardless of the mistakes of the past would you be willing to give first-class citizenship to a population that mourns the death of mass murderer Sheikh Yassin? I understand the cause and effect situation here--one reason for the antipathy to Israel among Israeli Arabs is that they do not feel that they have not been treated as full first-class citizens--but we are talking about the present, not the past, and I don't think a sudden openheartedness on the part of Israeli Jews to Israeli Arabs would do much to quell the nationalism and Islamic radicalism that is taking hold in the Galilee.

The vast majority of Israeli Arabs, even in the Triangle, wish to retain Israeli citizenship, in part because they want to retain the economic benefits of Israeli citizenship, in part because they know a future Palestinian regime is likely to be corrupt and dictatorial. But Israel cannot have its politics determined by a group that is not simply disloyal to the state, but who openly sympathize with its mortal enemies. Nazareth, Uhm Al Fahm, and other cities and towns of the Triangle will become the Sudetenland of Israel after any peace deal, the center of irredentist provocations, world "concern," and binationalist schemes meant to destoy Israel. In exchange for for the Jewish settlement blocs of Judea and Samaria (West Bank), they must, at least for political purposes, be part of any new Palestinian state, though they can remain economically integrated with Israel.

As a postscript, I should note that Israeli Arabs, while not doing as well as Israeli Jews overall, have relative rates of literacy, life expectancy, higher education, infant mortality and quality of life variables far better than the relative quality of life of Europe's Arab minorities compared to Europe's majorities. Indeed, Israeli Arabs probably do better than some of Israel's Jewish ethnic groups, though no one keeps statistics of that sort in Israel. But man, as they say, does not live by bread alone.

[David Bernstein,
3/23/2004 07:47:31 AM]Terrorism hits Close to Home: Amidst all the headlines about Yassin yesterday, you may have read that an Arab man attack three individuals on Ben-Gurion street in Ramat Gan, Israel with an axe, injuring one seriously. The incident took place right outside my girlfriend's father's apartment buidling. Worse, my girlfriend happens to be in Israel right now visiting her father, and was in the apartment when the attack occurred. The police warned everyone to stay in their homes, and Israeli t.v. in general is warning everyone to be alert--the whole nation is on edge waiting to see how Hamas tries to retaliate. This is the second time my girlfriend has been near a terrorist atrocity; last Summer she was in Israel on a work-related matter, and had been at the site of a bombing hours before. And she's not really in Israel that often, so you can imagine how many "close calls" many Israelis have. Of course, laws of statistics and probability being what they are, many close calls aren't really so close. Thousands of people may pass a certain spot on a given day, tens of thousands in a given month, but only a few dozen will be there when a bomb goes off. Still, it's a small country, and everyone is constantly thinking, "there but for the grace of God go I."

[Randy Barnett,
3/23/2004 03:42:44 AM]The Administration's Response to Dick Clarke: While I do not disagree with Jacob's assessment of the statement identifying the assassination attempt on President GHW Bush as terrorism, here is the entire White House response to Clarke's allegation. It is worth reading in its entirety, but I found the same item that includes this questionable example of Iraqi support for terrorism interesting nevertheless:

Myth: After the 9/11 attacks, the President ignored the evidence and tried to pin responsibility for 9/11 on Iraq.

The Facts: The President sought to determine who was responsible for the 9-11 attacks. Given Iraq's past support of terror, including an attempt by Iraqi intelligence to kill a former President, it would have been irresponsible not to ask if Iraq had any involvement in the attack.

When the President and his senior advisers met at Camp David on September 15-16, 2001, to plan a response to September 11, the DCI told the President that there was no evidence that Iraq was responsible for the attack. The President then advised his NSC Principals on September 17 that Iraq was not on the agenda, and that the initial US response to 9/11 would be to target al-Qa'ida and Taliban in Afghanistan.

Dick Clarke did prepare a memo for the President regarding links between Iraq and 9/11. He sent this memo to Dr. Rice on September 18, after the President, based on the advice of his DCI that that there was no evidence that Iraq was responsible for the attack, had decided that Iraq would not be a target in our military response for 9/11. Because the President had already made this decision, Steve Hadley returned the memo to Dick Clarke on September 25 asking Clarke to "please update and resubmit," to add any new information that might have appeared. Clarke indicated there was none. So when Clarke sent the memo forward again on September 25, Dr. Rice returned it, not because she did not want the President to read the answer set out in the memo, but because the President had already been provided the answer and had already acted based on it.

Notice that this alleged connection of Saddam to terrorism is not offered in this response as a justification for the Iraq war. I also found this of interest:

Myth:The Administration did not treat the intelligence chatter about an imminent attack during the spring and summer of 2001 with sufficient urgency; Principals did not "go to battle stations."

The Facts: The President and senior Administration officials were very concerned aboutthe threat spike during the spring and summer of 2001

The President and his NSC Principals received intelligence reports aboutthe intelligence "chatter" during this period, but none of the intelligence was specific as to time, place, or manner, and was focused overseas.

The Government's interagency counterterrorism crisis management forum (the Counterterrorism Security Group, or "CSG"), chaired by Dick Clarke, met regularly, often daily, during the high threat period. The CSG was at "battle stations." If Dick Clarke or other members of this group needed anything, they had immediate and daily access to their superiors. Dick Clarke never suggested that the President or the Principals needed to intervene to take any immediate action on these threats.

Dick did not ask to brief the President on the al-Qa'ida threat during this period — or at any other time. Instead, in the middle of the al-Qa'ida threat period, Clarke asked to brief the President, but on cybersecurity, not al-Qaida. He did so.

Formal, in-person meetings among Principals were not required; unlike President Clinton, President Bush met every morning with his Director of Central Intelligence, George Tenet for an intelligence briefing. Secretary Card, Dr. Rice, and the Vice President sat in on the briefings. The threat posed by al-Qa'ida and the need for a response was discussed regularly at these high-level meetings, as well as in frequent, regular discussions between Dr. Rice and Tenet. Dr. Rice and Secretaries Powell and Rumsfeld also have a 7:15 am phone call every morning and talk frequently during the day, and in this period they discussed actions to respond to the threat during these calls.

Although the threats were focused overseas, in July, Dr. Rice specifically directed Dick Clarke and his CSG to meet to consider possible threats to the homeland and to coordinate actions by domestic agencies, including the FAA, FBI, Secret Service, Customs, Coast Guard, and Immigration, to increase security and surveillance. During the Summer of 2001, FAA and FBI issued numerous terrorist threat warnings, including a warning about "the potential for a terrorist operation, such as an airline hijacking to free terrorists incarcerated in the United States." Security at federal buildings also were reviewed for vulnerabilities. Overseas, we also disrupted terrorist cells worldwide, significantly increased security at our embassies, and directed US Naval vessels to leave high-risk ports in the Middle East and heighten security at military facilities. . . .

During the Clinton Administration, Dick Clarke regularly briefed President Clinton because President Clinton did not meet regularly with his DCI. Since the beginning of his Administration, President Bush has met daily with his DCI for his intelligence briefing. President Bush believes he should get his intelligence principally not from White House staff, but from those directly responsible for US intelligence.

I am sure there is much to contest in the administration's defense, and that whatever it is will be contested. But an unfortunate byproduct of pushing the assessment of the self-evidently miserable failure of the government to prevent 9/11 into this political season is that all such criticisms must now be viewed with heightened skepticism given the rabidity of hostility to President Bush. Because valid criticisms will now be hard for the public to distinguish from unfounded politically-motivated assertions, the pervasiveness of rejectionism by Bush haters is likely to retard rather than enhance our understanding of the failures that led to 9/11.

UPDATE: Mansoor Ijaz offers seven questions he thinks should be asked of Richard Clarke at today's hearing. Here is part of the introduction to A Dick Clarke Top Seven:

The 9/11 commissioners have a thankless job of asking tough questions that nobody wants to ask. There will be a broad set of questions asked Tuesday and Wednesday of the various witnesses who appear. But when Clarke goes under oath, there will be a need to get down to specifics because the devil of understanding how 9/11 became possible is in the details of what Clarke did or did not do.

If I were a 9/11 commissioner, there are seven very pointed areas of inquiry I would enter into with Clarke to understand exactly how the intelligence failures and policy missteps evolved. . . [click here to continue]

Monday, March 22, 2004

[Randy Barnett,
3/22/2004 09:54:14 PM]More on Law and Revolution: I second Jacob's recommendation of Harold Berman's masterpiece, Law and Revolution. I was a student of Berman at Harvard in his course The Western Legal Tradition, and we read an early manuscript of Law and Revolution which at the time was sort of infamous for being unpublished for so long. I believe I wrote a seminar paper on the lessons it taught about competitive legal systems--the precursor of work I did much later on polycentric legal ordering. I am pleased to learn there will be another volume. Berman is a truly wonderful man, and he took something like 20 years to write volume one. It has probably been that long since it appeared, so volume two could be just as well done.

I guess with having had for teachers, along with Harold Berman, Ronald Dworkin for Jurisprudence (with whom I also did an independent study critiquing the chapter of Taking Rights Seriously in which he argued against a general right to liberty), Roberto Unger for Contracts, Morton Horowitz for Legal History, Larry Tribe for Constitutional Law, Alan Dershowitz and Alan Stone for Prediction & Prevention of Harmful Conduct, Frank Michelman for Property, and Charles Fried for Torts, I got my money's worth at Harvard. (And it was a lot cheaper back then.) I even saw Lon Fuller give a guest lecture in a Law and Religion class I took, and later he invited me over to his home in Cambridge for tea.

Palestinian leader Yasser Arafat has watched Mel Gibson's controversial Passion of the Christ at a private screening and said it was not anti-Semitic.

With endorsements like this, who needs condemnation? (And, no, the Arafat line doesn't prove anything about Gibson's movie -- it just struck me as funny, in a very dark sort of way.)

[Jacob Levy,
3/22/2004 01:36:32 PM]Assassination: In general, I thought and still think that the claim that we went to war in Iraq as Bush Jr's retaliation for the assassination attempt against his father was bogus, silly, and unserious; it acts as a kind of deflection from the hard questions about the costs of leaving Saddam Hussein in power. (There are parallel rhetorical tropes on the other side, of course-- cf "objectively pro-Saddam" as applied to people who aren't George Galloway or Ramsey Clark.)

But the administration's response to Richard Clarke today seems be bringing that assassination attempt up rather a lot. The claim is: it was reasonable to suspect Iraq of involvement in 9/11, because Iraq had tried to kill GHWB, eight years before. Quoth Condoleeza Rice: "Iraq, given our history, given the fact they tried to kill a former president, was a likely suspect." Clarke's book apparently quotes a number of people, including Paul Wolfowitz, talking about "Iraqi terrorism," referring to the assassination attempt.

In the first place, it's not clear to me that an assassination attempt against a former President counts as "terrorism" strictly defined. Bush Sr. was by that time a civilian and not in any way a combatant, making the assassination attempt a war crime even if Iraq and the U.S. had still been at war. Of course, they weren't, because Saddam Hussein had accepted the terms of a UN cease-fire which he then proceeded to violate for a dozen years; the assassination attempt might well have counted as an additional violation of the cease-fire in addition to being a war crime.

But I understand terrorism to refer to acts of violence (often but not necessarily mass violence) against civilians more or less randomly selected, violence that aims to terrorize the rest of a society's population into submission. I can't think that I've ever before heard the attempt to kill one prominent person in particular, singled out for clear and straightforward (even if wrongful) reasons, "terrorism."

But putting that semantic point aside; an eight-year-old assassination attempt against the ex-President who had led a coalition to war against one's country just doesn't seem like relevantly the same kind of act as 9/11. Was Iraq functionally an enemy state, with motive to strike against the United States? Sure. But did it have any kind of pattern of behavior into which 9/11 would fit? No; the attempt to kill George H.W. Bush isn't much at all the same kind of thing. Al-Qaeda, Hezbollah, Hamas, the ETA, the Real IRA, various PLO factions, some Algerian groups, even the Tamil Tigers-- sure. Iran as the sponsor of Hezbollah, Libya as the perpetrator of the Lockerbie and Berlin bombings? Yes. Not all of them had patterns of such behavior against the U.S., but this was the sort of thing they were known to do.

I don't even deny that Saddam Hussein would have been happy to commit mass terrorism against the U.S. -- that he had motive. But it doesn't seem to me that the assassination attempt added anything to the estimate of the likelihood of his complicity. Either his motive alone was sufficient reason to suspect him, or it wasn't. Classifying an assassination attempt as "terrorism" doesn't make it the kind of activity that establishes a pattern of behavior into which 9/11 would also fit.

[David Bernstein,
3/22/2004 11:52:41 AM]The End Result of the Peace Process: Allison Kaplan Sommer reports from Israel that the "man in the street" has given up worrying about Palestinian reaction to self-defense measures: "They see that when we try to make nice and compromise we get terror attacks. And when we're tough and aggressive we get terror attacks. Nothing we do seems to lower the motivation to slaughter Israeli civilians -- men, women, or children -- and in the case of Hamas, to see the state of Israel destroyed." And further:

Clearly, the Israeli public seems to have all but given up on figuring out how to make the right moves in order to nudge the Palestinians towards wanting a peaceful two-state solution. They've given up. That's why there's generally support for Sharon's unilateral disengagement plan -- otherwise known as the "We're So Disgusted with the Palestinians, We're Getting the Hell Away From Them and Building a Big Wall" plan. And if they try to wage war from the other side of the wall, they'll get the same treatment as Yassin.

This, from a center-left perspective. Even before reading this piece, it occurred to me that whatever solution, if any, is ever found to the Israeli-Palestinian conflict, it will not look as one expected ten years ago, with an integrated joint economy, and relatively free and open movement across borders. Rather, thanks to the venomous hatred and terror coming from the Palestinian side, it will be an armed peace, with the Palestinians closed off from Israel by a fence and border guards.

[Eugene Volokh,
3/22/2004 11:52:18 AM]Sabotage, and outsourcing source code and object code: As I've mentioned before, outsourcing source code does indeed pose the possibility of cyber-sabotage: Some computer programmer in Pakistan or Russia might sneak some harmful code into a program that will run on many American computers (including perhaps Defense Department computers).

This problem, though, can arise even without the outsourcing of source code, and while such outsourcing may increase the risk of the problem somewhat, I'm not sure that it increases the risk that dramatically. Among other things, consider: Wouldn't outsourcing object code be even more dangerous than outsourcing source code?

After all, if some U.S. company outsources the writing of computer program source code to a foreign company, at least the U.S. company can try to examine all the foreign-written source code to see if there are problems in it. This is far from a perfect solution, and I'm not sure to what extent U.S. companies really methodically do this (though I suspect that they try, in order to prevent inadvertent bugs, not just maliciously included ones). But at least it's much easier than trying to decompile the object code and check that.

OK, some might say -- we should prevent American companies from outsourcing object code as well as from outsourcing source code. But "outsourcing object code" happens every time an American organization buys a program written by a foreign company to run on its computers. To prevent the outsourcing of object code, we have to demand that American companies (or at least critical infrastructure companies or critical government computers) stop buying off-the-shelf code written overseas. That would cause huge losses for American consumers, and will also quite understandably annoy our trading partners. Insisting that American law not discriminate against foreign-producer computer programs is not a newfangled free trade invention -- it is, to my knowledge, the application of longstanding free trade principles.

So I do think we need to worry about cyber-sabotage. But trying to deal with it by focusing chiefly on outsourced source code would, I think, miss a huge range of risks that are at least as serious, and probably more serious.

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

This language has just been introduced in the Senate by Sens. Allard, Brownback, Enzi, Inhofe, Miller, Lott, and Santorum.

For reasons I mentioned last month, I think this is much better, because it clearly lets state voters and legislatures enact civil unions by statute (though not by a constitutional amendment). I still have some objections. First, I don't see why states that do want to set up gay marriages should be barred from doing so. Second, I don't think the U.S. Constitution ought to protect state citizens and legislators from the overreaching of their own state courts interpreting state constitutions (at least where no individual constitutional right is violated by this). State courts' misconduct should be dealt with by the state voters and legislators through the state constitutional amendment process. Third, this proposal would probably block voters and legislatures from expressly enacting civil unions by constitutional amendment (though it will leave them free to enact them by statute, either legislatively or by initiative.)

Nonetheless, this proposal seems much better than an earlier version that various people, including me, have criticized. I'm glad to see that the criticisms seem to have had some effect.

I receive your help faith, knowing that through you I shall do valiantly, for you are the one who treads down my enemies. . . .

[P]ray for each other, each others family, and for our school. . . .

Education in New Orleans, is in trouble.

What's interesting -- both for Establishment Clause reasons (especially as to the first item), and as a commentary on the state of education -- is that all these lines were apparently distributed, in writing, by the principal of a New Orleans middle school. (The first one is clearly attributed to the principal; the other two also seem to have been from her, as I read the article, but in any event come from someone in the school's administration.)

[Eugene Volokh,
3/22/2004 10:20:40 AM]Aleph-0 etc.: I was talking to some people about infinities -- measured as Aleph-0 (the size of the set of integers), Aleph-1 (often said to be the size of the set of real numbers, but that apparently depends on where you stand on the continuum hypothesis), and so on -- and then it struck me: We Jews have not just taken over banking, the media, the universities, and all that; we've taken over infinity itself!

[Jacob Levy,
3/22/2004 10:20:31 AM]Reading: It turns out that Harold Berman has written a a second volume of Law and Revolution, subtitled "The Impact of the Protestant Reformations on the Western Legal Tradition." Volume 1, "The Formation of the Western Legal Tradition," for those who don't know, was published in 1984 and provided an extraordinary survey, synthesis, and argument about the development of western legal thought from the Papal Revolution of the 11th and 12th centuries onward. It weaves together institutional, intellectual, religious, social, and economic history, and is one of the most valuable books I've ever read. (Jeremy Waldron first told me to read it; and, later, when he learned I hadn't yet, told me again.) I don't know what its reputation is among medievalists, but I think legal historians are pretty uniformly impressed by it (though the book is critical of what were then established ways of doing legal history).

Harvard University Press describes Volume II as being "long-awaited." For my part I had no idea that it was in the works the book that in retrospect we'll call Volume I stands alone just fine, and it's hard to believe that the same person could gain an equal level of mastery over early modern materials that Volume I shows over medieval ones. Had I known, however, I would have been among the awaiters. In any event, now I've got my copy, and it immediately moves to the top of my to-read pile.

More globally inclined economists insist that the creation of a middle class in poor countries overseas benefits everyone. And aren't people in India as entitled to jobs as people in America?

Are you willing to sacrifice 600,000 American jobs and employees to create jobs overseas? I love India. I love the Indian people. But the idea that we can sacrifice an American family to create jobs overseas is insensitive beyond belief.

Notice: an American family gets sacrificed, in order to create mere jobs overseas. And even an-- that is, one-- American family trumps any number of such jobs.

Dobbs calls the economists' argument "insensitive." But, as far as I can tell, he's openly calling for a tradeoff in which any American job is given infinite weight and any Indian job is given zero weight.

If India moves from the ranks of the per-capita desperately poor into the ranks of the per-capita middle-income countries in the next half-century or so, it will be a tremendous aggregate improvement in human well-being. Even apart from the fact that global trade is good for the rich countries too, that offshore outsourcing increases U.S. productivity, and so on, allowing the creation of skilled productive jobs in India is a tremendously good thing.

And the alternative to letting existing U.S. companies do it-- moving some of their operations to lower wage-per-productivity markets-- is to wait until those companies are uncompetitive and are completely undercut by other firms that make use of the wage-per-productivity differential. It's not as though the decision by a would-be "Benedict Arnold" company (feh) to stay put instead changes the reality about comparative advantage; it just defers the loss of American jobs for a little while.

[David Bernstein,
3/22/2004 07:41:46 AM]More on the Hate Crime Hoax at Claremont: Last week, I posted a note from one of my students, an alumnus of Claremont McKenna College, expressing his view that activists at the college and its affiliated schools were very disappointed that the "hate crime" reported there turned out to be a hoax, because they had used the hate crime as an excuse to promote a leftist agenda. In this article, professors express exactly such views. For example:

Some professors say the incident could set back their efforts, fueling the side of students who disagree that hate and intolerance are problems on campus. Others maintain the steps taken after the initial discovery of the car were positive, and hope students will recognize a climate hostile to diversity exists regardless of whether the charges against Dunn are true.

I've read many articles about the alleged "hostile environment" at the Claremont Colleges, many noting a "string" of racist incidents on campus. This string turns out to be drunken students setting fire to cross stolen from a building at Harvey Mudd College--the students (UPDATE: apparently convincingly) claiming it was a prank and they were unaware of the racial implications of their action--and a racial slur written on a calendar, perpetrator apparently not apprehended.

That's it. Two racial incidents at five colleges, none directed at particular students (UDPATE: and one apparently actually just random vandalism). Thousands of people attend and work at these schools. That a few of them are louts or fools hardly makes "a climate hostile to diversity." No, what allegedly makes the "climate hostile to diversity" is that the campus racialist left has met some resistance in implementing its agenda, and it isn't above using the worst forms of demagoguery--including taking advantage of what appeared to be a "hate crime"--to overcome that resistance.

[David Bernstein,
3/22/2004 07:15:27 AM]The Happiest Day of His Life:Yassin: "The day in which I will die as a shahid [martyr] will be the happiest day of my life." So I guess it's win-win.

UPDATE: And here's a good retort to Israel's European critics by British blogger Oliver Kamm.

[David Bernstein,
3/22/2004 06:28:53 AM]Yassin has been brought to Justice: Israel has eliminated one of the world's leading wanted murderers, Shiekh Yassin, founder and leader of Hamas. Under Yassin's leadership, Hamas has been responsible for the murder of hundreds of Israelis, and the wounding and maiming of hundreds more. Worse yet, any progress made in negotiations between Israel and the Palestinians has always been met with Hamas terrorism, a signal to Israel that Arafat is unable to unwilling to deliver peaceful coexistence. To take just one of many examples, Shimon Peres's Labor government of the mid-90s, the government that under Yitzchak Rabin brought the Oslo Accords, was brought down by a Hamas bus bombing campaign. Hamas's favorite target of late has been the Erez checkpoint, where Gazan workers enter Israel. Better, from Hamas's perspective, that Palestinians should all starve, so that they will more eagerly seek "martyrdom."

UPDATE: The reaction in Israel is mixed, with the right cheering, and the left arguing that the assassination will only inflame hatred, that a "negotiated settlement" is the only solution. (With whom? Arafat? Hamas?) In the center, there are concerns about reprisals. I think these concerns are misplaced. All indications are that Hamas has been gearing up for a major terrorist campaign to promote the view that any full or partial withdrawal from Gaza is its doing. This campaign is receiving logistical and financial support from Hizbollah and tactical support from the Al Asqa wing of Fatah. Much better to go on the offensive against Hamas, keeping its leadership in hiding and on the run, than to sit back and wait for Hamas to go after Israel. For a largely contrary perspective, see this article in the Jerusalem Post.

[David Bernstein,
3/22/2004 05:59:55 AM]Pipes at Berkeley On Daniel Pipes' blog, I came across this ridiculous letter from Robert M. Berdahl, chancellor of the University of California-Berkeley, sent in response to a protest about the way the university handled disruptions of his talk there:

February 26, 2004Dear xxxx:I would like to respond to your inquiry about the recent lecture of Daniel Pipes on the campus.The University faculty or some student groups occasionally have invited controversial speakers to the campus. We believe it is important to have all points of view expressed, regardless of the likelihood of criticism that ensues from those who hold opposing viewpoints. When Daniel Pipes was invited by Hillel to speak, we anticipated that pro-Palestinian students would use the occasion to protest, and we planned accordingly.When we hold an event on campus that we can reasonably anticipate will produce heckling and potential interruptions, our purpose is to assure that the speaker is able to deliver his or her message and complete his or her speech. We can neither insist that only those who agree with the speaker attend, nor can we silence those who attend and disagree with the speaker. We can and do require that anyone who interrupts a speaker leave the event, if necessary at the insistence of the police. We took such action at the Pipes speech.As the Daily Californian noted in its coverage:Throughout the speech, a handful of loud commentators were escorted outside by the police, and a large faction of Pro-Palestinian students made a dramatic exit toward the end of Pipes' speech. Pipes' supporters often shouted back for those students to listen. And somewhere in between, the moderate Jews, Muslims and community members said they found little resonance in Pipes' words and even less of an opportunity for real discussion.Did the campus meet its obligation to preserve the right of a speaker to present his or her message? I believe it did. The article from The Front Page [Magazine] concludes with the observation: "The audience gave Pipes a standing ovation with loud cheers at the conclusion of his speech."Uncivil behavior, lamentable as it is, is not a crime, nor is it a violation of the Code of Student Conduct. No matter how ugly and hurtful may be the comments of those who dissent from the opinions of the speaker, those comments are also protected by the First Amendment, and they are punishable only when those who make them refuse to leave when asked to do so by the police.

First of all, the First Amendment does not protect anyone's right to disrupt someone else's speech. That is why people who disrupt a speech can be escorted out by the police. And I presume that if Berkeley can sic the police on someone, they can also warn such individuals in advance that disruptive behavior will be punished by the university. "Pro-Palestinians" are free to hand out literature before and after the speech, and bring in their own speakers. Exercise of their right to freedom of speech does not entail disrupting someone else.

Note also that the good chancellor feels the need to suggest that "moderate" Jews, Muslims, and community members found "little resonance" in Pipes' speech, while acknowledging that Pipes received a standing ovation. Way to call hundreds of your students extremists, chancellor.

UPDATE: A reader suggests that, just for fun, pro-Israel students should, in protest of the chancellor's craveness, disrupt the next major fundraising or alumni event the chancellor holds on campus, in exactly the same way the "pro-Palestinian" folks disrupted Pipes' speech, and see if the chancellor's interpretation of the First Amendment changes.

Sunday, March 21, 2004

[David Bernstein,
3/21/2004 05:58:02 PM]Cyberterrorism and Outsourcing: Can't find the link, but Eugene blogged recently about how the U.S. allegedly sabotaged software the operated the Soviet's natural gas pipeline, and expressed concern that our own software could be vulnerable to sabotage. I'm actually writing an article that deals tangentially with cybersecurity issues, and just came across in my notes a link to a NY Times article expressing exactly this concern. Here's the abstract:

American companies continue to move their software development tasks out of their own offices to computer progrmming companies in US and abroad, raising concerns that such outsourcing may heighten risk of theft, sabotage or cyberterrorism from rogue programmers; operations in some countries, like US, Britain and India, are generally considered safe for such software outsourcing, and nervousness focuses on possibility of abuse by hackers, organized crime agents and cyberterrorists in nations like Pakistan, Philippines and Russia; outsourcing can save company 25 percent to 40 percent, and some of security concerns are raised by interested parties, programmers fearing export of jobs; companies providing outsourcing services argue that they take all necessary precautions to limit risk.

[David Bernstein,
3/21/2004 05:34:01 PM]Clark on Bush: I don't know anything about Richard Clarke, but he sure isn't making the Bush Administration look good. I'm still hoping that going after Iraq first instead of the real terrorist threat of Iran was part of some grand master plan, and not an inexplicable obsession with Saddam, but Clarke's claim that top Bushie's were obsessed with Iraq both before and after 9/11 gives me pause.

[David Bernstein,
3/21/2004 04:05:01 PM]USA Today Scandal: USA Today admitted last week that its reporter, Jack Kelley, fabricated many stories for the newspaper. Only one of those stories seems to have been motivated by animus toward its subject matter. Any guesses?

[Juan Non-Volokh,
3/21/2004 10:55:20 AM]Sunday Song Lyric: As if there were any doubt, the FCC has determined that the “F-word” is too profane for television, even when used as an adjective. So continues the current obsession with offensive material on radio and television. As I noted last week, this heightened sensitivity has the potential to chill political expression. The obsession with specific words or phrases can also distract from more serious consideration of the merits of particular works. There is nothing about the use of offensive language or imagery that is necessarily deep or penetrating – though many modern artists certainly seem to think otherwise. By the same token, some such material is quite evocative and powerful.

The current brouhaha over obscenity in music and on the airwaves is not the first, and it will not be the last. In the 1980s, Tipper Gore launched the Parents Music Resource Center to seek album content labels. In their presidential campaigns, Bill Clinton attacked rapper Sister Souljah in 1992, and Bob Dole condemned offensive lyrics in 1996 as well. Like many critics, Dole almost exclusively assailed rap artists. The one non-African-American band subject to his criticism was Nine Inch Nails, the source of this week’s lyric (chosen, I suppose, in honor of the FCC).

Nine Inch Nails gained political notoriety for the stark, graphic, and sexually violent lyrics of The Downward Spiral, especially those to the hit single “Closer.” (Another single from the album, “Hurt,” was more recently covered by Johnny Cash and became Spin's Video of the Year. Watch it here.) But the controversy over Trent Reznor’s lyrics obscures the depth and power of much of Nine Inch Nails’ music. Case in point is this week's lyric, the title track from The Fragile, Spin Magazine’s album of the year in 1999.

she shinesin a world full of uglinessshe matters when everything is meaningless

fragileshe doesn't see her beautyshe tries to get awaysometimesit's just that nothing seems worth savingI can't watch her slip away

I won't let you fall apart

she reads the minds of all the people as they pass her byhoping someone can seeif I could fix myself I'd – but it's too late for me

I won't let you fall apart

we'll find the perfect place to go where we can run and hideI'll build a wall and we can keep them on the other side...but they keep waiting...and picking...

it's something I have to doI was there, toobefore everything elseI was like you

[David Bernstein,
3/21/2004 08:24:47 AM]Laissez Faire Books Sale:Laissez Faire Books, the leading seller of libertarian, classical liberal, and free market-oriented titles, is having its semi-annual 15% off sale. This is a great opportunity to pick up Randy's Restoring the Lost Constitution. Amazon is selling it for its list price of $32.50, but LFB has it for $24.50, plus an additional 15% off, for a total of $20.61. And LFB still seems to have some autographed copies in stock!

[David Bernstein,
3/21/2004 08:07:40 AM]Results of the "Second Intifada":Strange article by Aluf Benn in Ha'aretz, arguing that what Sharon is asking from Bush in return for withdrawal from Gaza is de facto recognition of Israeli annexation of the Etzion bloc of settlements, the same settlements Israel would have acquired under the Camp David proposals of 2000. Benn concludes that Israel has fought 3.5 years just to get back to where she was in 2000. What Benn never mentions, however, is that it was Arafat and the Palestinians, not Israel, who rejected the Camp David proposals in 2000, and, indeed, Israel agreed to further concessions in Taba a few months later. A settlement along Camp David lines, with, as Bush has insisted, Arafat no longer in power, replaced by someone actually committed to peace and to fighting terrorism, would be a huge victory for Israel.

"Publishing a book has always been a risky prospect, with success all too often dictated by events beyond an author's or publisher's control: a glowing review, selection by a book club, an invitation to appear on radio or television.

But there's another path to literary success, at least for a lucky few: litigation. Paradoxically, a lawsuit, especially a flimsy one, can be a boon to a book's fortunes. And increasingly, some writers and publishers admit to hoping they'll attract one."

Here is the the full article. The bottom line is this: modern publishing requires some means to ration reader attention. More often than not, scandal fills the bill. Note, however, that academics may not find this path so rewarding. They already own some reputational capital among their peers, which a lawsuit, whether just or not, is unlikely to enhance. Seeking a lawsuit is more useful for those who have no preexisting reputation to lose.